Iley v. Linzey

• Decision Date: 15 September 1988
• Docket Number: No. 87-312,87-312
• Citation: 531 So.2d 1361,13 Fla. L. Weekly 2166
• Parties: 13 Fla. L. Weekly 2166 Markham ILEY and Kemper Group, Appellants, v. James LINZEY, Appellee.
• Court: Florida District Court of Appeals

Page 1361

531 So.2d 1361

13 Fla. L. Weekly 2166

Markham ILEY and Kemper Group, Appellants, v. James LINZEY, Appellee.

No. 87-312.

District Court of Appeal of Florida,

First District.

Sept. 15, 1988.

Rehearing Denied Nov. 3, 1988.

John E. McLain, III, and John P. Daly of Cooper, Rissman, Weisberg, Barrett & Hurt, Orlando, for appellants.

Irvin A. Meyers of Meyers and Mooney, Orlando, for appellee.

ZEHMER, Judge.

The employer, Markham Iley, and the carrier, Kemper Group, appeal an order of the deputy commissioner awarding claimant James Linzey temporary total disability benefits (TTD), determining claimant's average weekly wage (AWW), and awarding claimant taxable costs. For the reasons stated below, we affirm.

Claimant, a seasonal farm worker, injured his head and neck in an accident arising out of and in the course and scope of his employment on September 26, 1985. The accident was accepted as compensable by the employer and carrier, and they provided medical care and paid claimant $48 per week in TTD benefits until March 27, 1986. Claimant subsequently filed a claim seeking TTD benefits from March 28, 1986, and a determination of his correct AWW and compensation rate. At the hearing, much of claimant's 1985 employment was characterized as a series of one-time jobs, mainly performing a variety of general farm work such as picking eggplants, peppers, and squash. It was also established that at two of the jobs, those with Shirley's Furniture and Thelma Iley, claimant and his wife were the only employees. At Shirley's Furniture, claimant and his wife did odd work such as cleaning out a building and hauling off some garbage. For Thelma Iley, they built a utility shed and painted barn tops.

The deputy commissioner concluded that claimant was a seasonal worker entitled to have his wage determined on his total earnings during calendar year 1985 pursuant to section 440.14(1)(c). He determined that claimant's AWW was $284.90 per week, resulting in a compensation rate of $189.74. Although the employer and carrier argued that part of claimant's 1985 earnings were from employment not covered by the act, the deputy commissioner stated:

In making my finding on the average weekly wage I have carefully considered the employer/carrier's argument that part of the earnings that the claimant had during calendar year 1985 were from employment not covered under the Florida Workers' Compensation Act. There is a question as to whether part of claimant's earnings from seasonal employment in calendar year 1985 were from employment covered under the Florida Workers' Compensation Act. I find that it is not necessary to decide that factual issue because it is my finding and conclusion that in computing the average weekly wage of a seasonal employee it is not a requirement, as in concurrent employment, that the earnings be from employment covered under the Florida Workers' Compensation Act. This precise question has apparently not been answered by the appellate courts but it appears to this Deputy Commissioner that to require that all earnings which a seasonal worker has in a calendar year or fifty-two weeks preceding his accident be from covered employment would impose a burden on the claimant which would be unreasonable and not contemplated by Florida Statute 440.14(1)(c). Unlike claimants with concurrent employment, many seasonal workers have numerous jobs during a year, both in and out of the State of Florida, and to require them to prove that all of their earnings were from covered employment would be virtually impossible and would frustrate the intention of the Legislature in providing for an equitable method of calculating an average weekly wage on the basis of seasonal employment.

(R. 346-47). The employer and carrier were ordered to pay claimant TTD benefits from March 28, 1986, to the date of the hearing at the new compensation rate and to pay claimant any arrearage incurred from the date of the accident to March 27, 1986.

The employer and carrier first argue that the deputy commissioner erred in awarding TTD benefits because claimant unreasonably refused to undergo requested and recommended medical treatment. The record contains competent substantial evidence to support the deputy commissioner's finding that claimant had a valid reason for not attending the pain clinic. Finding no abuse of discretion on this issue, we affirm. Swanigan v. Dobbs, 442 So.2d 1026 (Fla. 1st DCA 1983).

Next, the employer and carrier contend that the deputy commissioner erred in calculating claimant's AWW and compensation rate. They argue that the deputy should not have included in claimant's wage base certain earnings from private employment in which less than three employees were employed by the employer because such employment is not covered by the Workers' Compensation Act. In support of this argument they cite section 440.02(13)(b)2 ¹ and Jay Livestock Market v. Hill, 247 So.2d 291 (Fla.1971). The employer and carrier contend that the fact claimant was a seasonal employee does not preclude application of the principle of law that "wages earned by a claimant from employment excluded from coverage under the [Act] are not includable in determining the claimant's compensation base," Rollins Building Services, Inc. v. Thomas, 393 So.2d 665 (Fla. 1st DCA 1981), and that the decisions which hold that only wages earned in covered employment can be included in AWW should be applied to the seasonal worker provision in section 440.14(1)(c). Cf. Jaquette Motor Co. v. Talley, 134 So.2d 238 (Fla.1961).

We recognize that a number of decisions have treated wages earned in concurrent employment excluded from coverage under the act as not includable in determining the claimant's compensation base. See, e.g., Jaquette Motor Co. v. Talley, 134 So.2d 238 (Fla.1961) (bridge tender for railroad); Jay Livestock Market v. Hill, 247 So.2d 291 (Fla.1971) (farm worker); State, Dept. of Corrections v. Tharpe, 413 So.2d 159 (Fla. 1st DCA 1982) (employer with less than three employees); Randell, Inc. v. Chism, 404 So.2d 175 (Fla. 1st DCA 1981) (independent contractor); Rollins Building Services, Inc. v. Thomas, 393 So.2d 665 (Fla. 1st DCA 1981) (domestic servant); Wilson v. City of Haines City, 97 So.2d 208 (Fla. 2d DCA 1957) (independent contractor). See also Tenneco, Inc. (Traveler's Insurance) v. Montana, 520 So.2d 615 (Fla. 1st DCA 1988); Anna Maria Fire Control District v. Angell, 528 So.2d 456 (Fla. 1st DCA 1988). None of these cases, however, has dealt with the seasonal worker provision in section 440.14(1)(c) and the precise issue before us. Consequently, it is necessary to analyze the underlying rationale of these cases to determine whether they should be applied to the seasonal workers provision in section 440.14(1)(c) as well.

Our analysis must begin with the premise (not only in this but every workers' compensation case) that the statutory language has controlling importance and the court decisions only construe and apply the provisions of the applicable statute to the particular facts before it. Our analysis must also focus constantly on the basic purpose of wage loss benefits, which is to compensate the employee for the loss of earning capacity attributable to an accidental injury covered by the act.

Chronologically, the first case we look to is Wilson v. City of Haines City, 97 So.2d 208 (Fla. 2d DCA 1957), wherein the court characterized the question presented as "apparently one of first impression in Florida." Id. at 209. The claimant, Wilson, was a member of the city volunteer fire department and was injured during the course of that employment. It was part-time employment that paid only a modest amount ("$1 for each fire attended and $1 for each practice drill," which amounted to an average earnings per week of $1.38), as claimant was primarily in the business of electrical contracting and operating appliance and hardware stores. The claimant contended that the deputy commissioner and the full commission applied the wrong rule and statutory law because they excluded his earnings from his employment as a contractor and store owner in calculating his average weekly wage. The court, after quoting section 440.14(5) (as it read at that time), affirmed the full commission's ruling that "the claimant was not an employee in any other field of endeavor, therefore, his sole earnings as an employee was that of a volunteer fireman"; thus, claimant could not include earnings from his endeavor as a businessman and contractor because these earnings "accrued to him as an employer and not as an employee." Id. at 210. ² It is incorrect, therefore, to cite this decision for the broad proposition that earnings from a specific employment not covered by the Florida act cannot be included in AWW calculations, because the plain holding of the case is simply that claimant's income from his business did not qualify as wages earned as an employee and thus could not be included in his wage base. ³

In the next case, Jaquette Motor Co. v. Talley, 134 So.2d 238 (Fla.1961), the supreme court was presented with a slightly different aspect of the question concerning the inclusion of wages earned in a second job in the calculation of average weekly wage. The employee, Talley, earned $45 per week as a used car salesman during the day and $66 per week as a bridge tender for a railroad company at night. He suffered a disabling heart attack while working for the used car lot and sought workers' compensation benefits. The deputy commissioner calculated Talley's average weekly wage by combining the earnings from both jobs, and the full commission affirmed. Section 440.09(2), Fla.Stat. (1961) provided, "No compensation shall be payable in respect of the disability or death of an employee of a common carrier by railroad or express company engaged in intrastate, interstate or foreign commerce." ⁴ The employer contended that in view of this provision, it was error to include claima...